Wednesday, June 11, 2008

LEGAL BLOG WATCH

Law School Deluge: One Loss, Two Wins

The National Law Journal reported last week that as many as 10 new law schools are on the drawing boards, raising the question, Do we really need any more? For now, at least, there may be one fewer startup to worry about. Last week, the Maine Supreme Judicial Court turned down a petition from Husson College in Bangor to allow graduates of its proposed law school to take the Maine bar exam. The court called the petition unusual, given that the law school has yet to open its doors. It ruled on it nonetheless, denying the request because of the proposed school's lack of ABA accreditation and its failure to identify an acceptable alternative to accreditation. Although the court left the door open for a later petition, the Bangor Daily News reports that school officials earlier said they would not go forward with their plans if the petition was turned down. (Hat tip to the ABA Journal.)

Busy day at the Supreme Court yesterday, with four major opinions handed down. SCOTUSblog wraps up links to the cases, news stories and blog posts. Meanwhile, a decision yesterday from a three-judge panel of the 1st U.S. Circuit Court of Appeals, Cook v. Gates, is drawing interest for its dismissal of a constitutional challenge to the federal government's controversial "Don't Ask, Don't Tell," policy on gays in the military. Interpreting the Supreme Court's 2003 opinion, Lawrence v. Texas, which struck down convictions of two gay men under a Texas sodomy law, the 1st Circuit held that Lawrence did not require it to invalidate DADT. But just a month ago, the 9th U.S. Circuit Court of Appeals, in Witt v. Dept. of the Air Force, suggested that DADT might not withstand constitutional scrutiny. But because it remanded the case for further findings, it stopped short of deciding the constitutional question.

The two decisions raise any number of discussion points, but the least academic of them may be whether this apparent difference of opinion among circuits means that the issue is heading to the Supreme Court. "Probably," is the answer given by Terry Klein at his blog, Decisionism. And if the issue makes it to the Supreme Court, "the result will depend almost entirely on what Justice Kennedy is thinking," he says. At The Volokh Conspiracy, Eugene Volokh is less certain, if only because the subsequent history of these cases remains uncertain. Will the 9th Circuit rehear the case en banc? Will either the government or the challengers seek Supreme Court review? Would the Supreme Court agree to hear the case? Lots of questions, and the 1st Circuit's opinion will certainly factor into how they get answered. But with the 9th Circuit having left the ultimate question to another day, the Supreme Court's response to a "Don't Ask, Don't Tell," case may be, "Not now, let's wait."

An international competition to honor outstanding in-house lawyers and legal departments released its short list of finalists this week, with the winners to be announced at an awards ceremony in New York June 25. The 2008 Global Counsel Awards is described as singling out "those in-house counsel, both teams and individuals, who excel in their specific roles." It seeks to recognize "demonstrable achievements," not simply "high-profile transactions."

The awards are given to individuals and teams in a variety of categories, including competition, employment, general commercial, IP, litigation and regulatory. Separate awards are given to in-house departments for their pro bono work and best training program. For the top award, general counsel of the year, this year's finalists are Amey plc, Caterpillar Inc., Ford Motor Company, Rio Tinto Alcan and Thomson SA.

As Elefant explains, in the first year after the Pennsylvania lawyers hired Glassman-Katz, she filed more than 500 cases -- many in the wrong venue. A full 47 of her cases were dismissed, purely because of her failure to respond to discovery requests. Maryland's Attorney Grievance Commission filed charges against Glassman-Katz in 2006, and although she claimed lack of supervision in her defense, she eventually consented to disbarment. As for the firm, the grievance committee didn't buy its argument that it knew nothing of the problems in the Maryland office, recommending that both lawyers be indefinitely suspended. At a hearing last week, the Maryland Court of Appeals gave every indication it would agree with the recommendation.

Elefant sees lessons here for lawyers who may find themselves considering similar arrangements. For the lawyer being hired, "Know your limits. If you find that you can't handle a case or don't know what to do, just stop." On the hiring side, before making a decision, "engage in due diligence" and "install systems to make a hire accountable." For me, what made my jaw drop about it all was the utter lack of common sense displayed by anyone involved.

A newly published benchmarking report on law firm fees and pricing has a variety of interesting findings about how law firms set rates and bill. But two findings stood out to me as particularly interesting. The first is that at least half of the firms surveyed conduct competitive price research "to uncover and understand their competitors' fee structures." They do this through data collected directly from clients as well as through external research. The other finding that interested me -- related to the first -- is that most firms base their pricing strategies on the going rates charged by their competitors. In fact, 80 percent of firms said they use that strategy "most of the time/sometimes."

Pricing is tough. Firms feel significant uncertainty and pressure about setting fees -- uncertainty about what clients will pay and pressure to remain competitive.

Discounting is common. Firms criticize discounting, but three-quarters say they do it, at an average rate of 9.9 percent.

Guarantees are common. Nearly half of the firms said they offer service guarantees, with the most common being to cut the bill based on dissatisfaction with the value received.

The survey was conducted by RainToday.com, a professional-services research and consulting firm based in Massachusetts, which sells the full report for $395 in hard-copy or $345 for download. Based on the findings, the authors offer some fairly obvious recommendations as to how law firms can raise their fees and profits: establish a brand, lead and innovate, get bigger, emphasize value, improve business development, and become active in the RFP process. All, of course, easier said than done.